Moreno v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0027

CARL MORENO (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST AP, NIALL and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 April 2023
DATE OF JUDGMENT:	1 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 98
JUDGMENT APPEALED FROM:	[2023] VSC 78R (Lasry J)

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CRIMINAL LAW – Leave to appeal – Decision of trial judge not to exclude evidence – Witness identified applicant after conversation with another person and having been shown a Facebook photograph of the applicant – Whether impugned evidence excluded under Evidence Act 2008, s 137 – Probative value of evidence low – Significant risk of unfair prejudice to applicant – Leave to appeal granted – Appeal allowed.

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Counsel
Applicant:		Mr D Dann KC and Ms A Dixon
Respondent:		Mr D Porceddu
Solicitors
Applicant:	Melasecca Kelly & Zayler
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST AP
NIALL JA
KAYE JA:

The applicant is charged with the murder of Adrian Pacione (‘Pacione’), and with aggravated burglary, arising from a single incident in Lalor on 18 July 2020. On the same indictment, the applicant is also charged with attempted armed robbery, which is alleged to have occurred on 23 June 2020 at Roxburgh Park.
On the evening of 18 July 2020, Pacione was sitting on a chair watching television at the home of his friend Christian Rubini, a unit in Ella Court, Lalor. Also present were Lorenzo Tigani (‘Tigani’) and Christian Rubini’s father Mario. Christian Rubini had sold drugs from his home and, from time to time, people came there to buy drugs. At the entry to the unit was a wooden front door and a security door.
At around 10:38 pm the occupants heard a knocking at the door and Christian Rubini opened it, leaving the security door closed. He saw several people including a man, face partly covered, holding a gun. As those outside sought to enter the unit, Christian Rubini struggled to close the door and Tigani ran to the door to assist him. A number of shots were fired through a glass window pane next to the door. One of the bullets penetrated Pacione’s skull and, later that evening, he died from the wound.
Arising from the incident, the applicant, Abdullah Hammoud (‘Hammoud’), Tahmid Rahman (‘Rahman’) and Ammair Fahal (‘Fahal’) were charged with aggravated burglary; and the applicant was also charged with murder. Rahman and Fahal have pleaded guilty to their respective charges and await a sentencing hearing.
It is necessary to introduce at this point the Roxburgh Park incident. Tigani, together with Dimitros Pramatias (‘Pramatias’) (who is also known as ‘Taki’) were the victims of the alleged attempted armed robbery. In brief, Pramatias and Tigani were attempting to purchase cannabis from two men, one of whom pulled a gun and attempted to rob them. After a scuffle with Tigani and Pramatias, in which the two offenders were stabbed, the two offenders escaped without successfully completing the robbery. The prosecution allege that the applicant and Hammoud committed the attempted armed robbery.
On the applicant’s trial for murder and aggravated burglary, the prosecution proposes to adduce identification or recognition evidence from Tigani. He will say he recognises the shooter on 18 July as being the person who had pulled out the gun in Roxburgh Park. In a statement to police Tigani refers to the applicant by name and says:
I recognised him from the occasion when he pulled the firearm on me. This is not something that you forget.
The applicant applied to the trial judge to exclude the evidence under s 137 of the Evidence Act 2008 (‘the Act’). The trial judge rejected that application. The applicant seeks leave to appeal the ruling.[2]
[2]On 3 March 2023 the judge certified the matter for the purposes of s 295(3)(a) of the Criminal Procedure Act 2009.
For the reasons that follow, we would grant leave to appeal and allow the appeal.

The evidence

In order to describe the impugned evidence and to put it in its context it is necessary to refer to three incidents involving Tigani.

21 June 2020

On 21 June 2020, Tigani and Pramatias arranged to purchase cannabis through an associate Luan Sabini (‘Sabini’). Sabini collected Tigani from Christian Rubini’s home in Ella Court. They drove to a nearby park and waited for the arrival of the drug dealers who arrived a short time later by car. Tigani got into the drug dealer’s car which was occupied by two men, Majid Alibadi (‘Alibadi’) and Ahmed Rizzutto (‘Rizzutto’). Tigani was shown cannabis and handed over the purchase price of $7,700, part of which had been provided by Pramatias and the balance by Tigani. Rizzuto pulled out a hand gun and told Tigani to get out of the car, which he did. The drug dealers then drove off with both the drugs and the money.

23 June 2020

After the incident, Pramatias contacted Hammoud to ‘resolve the situation’. Pramatias told Tigani that he had spoken to Hammoud who could supply cannabis at a good price. We interpolate that the evidence shows that both Hammoud and the applicant were well known to Pramatias.
On the evening of 23 June 2020, Pramatias, Christian Rubini and Tigani went to meet Hammoud to buy the cannabis. After they arrived at the meeting point in Roxburgh Park, Tigani and Pramatias entered a Toyota HiLux in which two men were sitting. Pramatias and Tigani got into the back seats of the HiLux. Tigani sat in the rear passenger side seat.
Tigani says that the man sitting in the front passenger seat turned around and had a conversation with Pramatias who was in the rear driver side seat. Tigani says that he had ‘a good view of him’. He says the person in the front passenger seat had a piercing underneath his bottom lip and a ‘little bit of a goatee’. He had short dark hair and was of Middle Eastern appearance.
The man in the front passenger seat got out of the car, came to the rear passenger side where Tigani was seated, opened the car door and produced a gun. Tigani was hit over the head with the gun and the man said ‘give me everything before I shoot you in the fucking head’.
Tigani got out of the car with his hands up. He then grabbed the gun and a struggle ensued. He said that, as he grabbed the gun with his left hand he punched the person as hard as he could to the face with his right hand. The two men stumbled on the ground. As he was on top of the man, the other man put him in a headlock. Pramatias then came to assist Tigani.
The two drug dealers got into the HiLux and drove off leaving the firearm. During the struggle the two drug dealers sustained stab wounds. They were later taken to hospital, police were called, and they were identified as the applicant and Hammoud. Both were subsequently charged with attempted armed robbery.
Hammoud has pleaded guilty to the attempted armed robbery offence.

18 July 2020

As already outlined, on the evening of 18 July shots were fired into Christian Rubini’s unit, fatally wounding Pacione.
Immediately after the shooting, police and ambulance were called to the unit. Police attended about 10 minutes after the shooting.
Tigani was spoken to by police at the scene and gave a statement. In that statement, Tigani says that after Christian Rubini had gone to answer the door he also went to the door and ‘poked my head up from behind the screen door’. He saw a man holding a gun. He said the man held the gun up and he heard a click which he thought was a misfire. He said there was a struggle over both sides of the door and that as soon as the door was closed he heard shots.
In his statement Tigani said:
The male holding the gun was of Arabic appearance, he was wearing a half mask covering the bottom of his face, it was plain black. He had really thick eyebrows and dark eyes. I think he was wearing a hoddie [sic] but I could tell he had short black hair. I’m 6’2 so I think he would have been about 5’9 or 5’10. I’d say he was about 21 or 22 years old. I don’t remember the description of the other males but they were all Arab and between 19 and 24 years old.
Tigani made another statement to police on 27 July 2020. In that statement he acknowledged having given an earlier statement to police adding that:
I didn't include everything in my first statement because I was unsure of everything, I was in shock at the death of Adrian and the passing of [his grandmother].
In his second statement Tigani described the incidents of 21 and 23 June. In dealing with the Roxburgh Park incident Tigani names the applicant as the person who had pulled the gun on him on 23 June.
In his second statement Tigani describes the incident of 18 July and gives further details about what happened when he had gone to the front door. He says that after Christian Rubini had opened the door, Tigani leant back on the mattress on which he was sitting and saw a man raise his hand with a handgun and heard Christian Rubini say ‘he’s got a gun’. He said he then ran from the mattress to the front door and as he was running the security door started to open. He continues:
It was at this point that I got a good look at the person holding the gun. I can identify this person as [the applicant]. I did not see any other person standing with him at this time.
I recognised him from the occasion when he pulled the firearm on me. This is not something that you forget. All I saw was his face. He was wearing a black hoodie and a dark half mask. However you could see his eyes and his eyebrows and nose. I would have been less than a metre away from him at this point.

The interview with police

On 27 July 2020, in addition to completing his second statement, Tigani underwent a recorded interview with police in relation to allegations against him of possessing a firearm and trafficking a drug of dependence.
In the course of that interview Tigani was questioned about the incident of 23 June. In his answers he identified the people involved as the applicant and Hammoud. Asked how he knew that, he said:
’Cause I know it's them. I was – you can tell – I’m – I’m very good with faces.
…
Taki[3] mentioned it and the thing is, is that the guys that I saw from – when I – when they pulled out that gun … was the same guys that did this murder to my mate Adrian Pacione.
…
Taki was the one to say it, Taki …
[3]As already noted, Pramatias is also known as Taki.
Asked to tell the officer about the murder Tigani responded:
When I first saw – when I – all this happened, O.K., I – I – the guy, you know, I – I recognised him but I didn’t know. I’m like, ‘I’ve seen his face,’ but I wasn’t a hundred per cent sure who. Then I think it was a couple of night – I think it was the night – night after or whatever it was, I was – I was with Taki and I was – and Taki’s mentioned that…
The applicant then described how he and Mario Rubini were holding the door and there were at least three or four men on the other side of the door and that shots were fired.
Q 245 Yeah. So the person you saw with the firearm - - -
A The gun was [the applicant] and that’s the guy that pulled the gun on me at the first time.
Q 246 Yeah.
A       I had a good look at him, I – I’m witness to that.
Q 247 Yeah.
A He needs to serve – he need – I need to bring my mate some peace and he needs to get fuckin’ - - -
Q 248 Yeah.
A        - - - locked up for a very - - -
Q 249 Yeah.
A        - - - long – very long time for what he’s done.
Q 250 And you saw his face at the - - -
A       I saw his face. I know that that’s a hundred per cent him.
Q 251 Yeah.
A ’Cause we’re – and especially when Taki cleared it up, where he said [the applicant]’s – [the applicant]’s dad - - -
Q 252 Yeah.
A        - - - spoke to his auntie and said, ‘Please don’t go to the cops - - -‘
Q 253 Yeah.
A       - - - you know, ‘for what’s - for what I’ve done,’ whatever.
Q 254 Yeah. Do you know the auntie’s name?
A       Nuh, nuh. I don’t know anything, I’ve just – that’s - - -
Q 255 Yeah.
A       I’ve – the thing is, I’ve – I’ve had to get this out of Taki - - -
Q 256 Yeah.
A - - - I interrogated him. We didn’t find out anything, we had to find out shit out of Taki. We found out this these guys were messaging Taki, kept messaging him - - -
Q 257 Yeah.
A - - - threatening him, even said to him, ‘If you don't bring the gun back we’re coming to your house.’
Q 258 Yeah.
A       So there’s a lot of shit that Taki needs to be talking about too - - -
Q 259 Yeah.
A        - - - that needs to – he needs to open up.
Q 260 What was – can you describe what [the applicant] was wearing on the night?
A       Nuh. When – which night?
Q 261 The shooting - - -
Q 262 Shooting.
Q 263 - - - night.
A Nuh. I can’t really remember. It was just like a – I think it was like a black hoodie and just bandanna, a – I can’t really remember, it was a quick look - - -
Q 264 So bandanna - - -
A        - - - but I remember his face - - -
Q 265 Bandanna was covering - - -
A       - - - I remember seeing his eyes.
Q 266 - - - what part?
A Just – just here – just here. But I remember I looked at his eyes and the thing is I’m – I’m good with faces. I looked at his eyes, I knew he was familiar but I didn’t know who. Taki cleared it up for me when he told me to – [the applicant] and I was like, ‘[the applicant] was the guy from the second – that was him,’ that's where I found him familiar. That was the guy, I put two-to-two together and brang it to one, that’s the killer, you know what I mean, and – yeah.
Q 267 Yeah, all right. And so when you’re at the door, mate, tell me the, like, who was standing where and - - -
A All right. So way – the way – I can’t remember – I remember seeing one other guy and I believe that’s Robbie Hammoud. Doing a - - -
Q 268 Mm.
A - - - bit of research, seeing some photos and seeing who [the applicant] was with a couple of nights before, I believe one of the guys there was Robbie Hammoud as well.
Q 269 Yeah.
A And – ’cause what happened was we were – we were at – when they done the shooting and that, I can’t remember if it was after or before - - -
Q 270 Mm.
A - - - I seen the – ’cause the curtains were flapping, I think it was after, like, they shot, the curtains flapped, like, and I saw a face and I saw – I saw this guy but I wasn’t – didn’t know who it was.
Q 271 Mm.
A But then I’m – I’m – I’m searching up, like, later on I wanted to do a bit of my own investigation myself.
Q 272 Yeah.
A I wanted to see, you know what I mean? And I seen – I seen that [the applicant] was a - with a few guys that night and one of the other – one – one guys he was with looked very familiar was that – that was with him on that night of the shooting.
Q 273 Yeah.
A       And that was Robbie Hammoud.
Asked how many people he had seen, Tigani said he ‘definitely saw two but I definitely know there’s three or four’. Asked which of them he could identify Tigani said:
First person, a hundred per cent, 200, three, four, 500 per cent [the applicant] with the gun that shot through, through the window. I’m – I’m dead, like, I know … that was him. I’m a hundred per cent on that, yeah. I can – you can bring him in the room and I’ll point him out. You can put a hundred guys and I’ll point him out which one, yeah.

The s 198B examination

Tigani and Pramatias were examined before the judge under s 198B of the Criminal Procedure Act2009.
In the course of that examination, Tigani was asked about his initial conversations with police on the night of the shooting. Tigani agreed that he gave the police as much information as he could and he said that he had been truthful ‘at the time’. He agreed that he had told police that he had no idea what the shooting was about and that he told police that he did not know who the person was. He gave the following evidence:
You told him, did you, that you didn’t know who that person was? Is that what you told that officer taking the statement from you?---Yes. At the time.
You were being truthful again, were you?---At the time, yes.
You also told that officer that was taking the statement from you that you didn’t recognise that person that was outside the house holding a gun? Is that what you told that officer taking your statement?---Yes, at the time, yes.
That was the truth, was it?---Correct.
You didn’t recognise that person who was outside - - -?---At that time - - -- the house holding a gun?---At that time, yes.
Right. And did you also tell that officer who was taking the statement from you that you had no idea what this shooting was all about?---Um. At the time, yes.
Again, you were trying to be truthful, were you?---Um. Yeah. Yes, I was.
Asked about his first statement, Tigani said that at the time of the incident he was in shock and was not ‘in that right state of mind to put in a detailed statement’. It was put to Tigani that if he knew who the shooter was he would have told police, and, after some unresponsive answers and a question from the judge the following evidence was given:
When the incident occurred, did you believe or not believe that you knew who it was?---Well, at the time ……
On the night, when the incident occurred, did you think you knew who the shooter was?---I thought, but I didn’t know.
Sorry, you thought?---Yes, but I didn’t know.
But you didn’t know?---No.
So, what, you had a suspicion?---Correct.
And did you tell the police about that suspicion?---No I didn’t.
Why not?--- ’Cause I was in fear and in shock. Fear for my own safety.
Later in the examination, the applicant was questioned about his discussions with Pramatias after the shooting, which Tigani had referred to in his record of interview.
Did Taki tell you that it was [the applicant] who was involved in the shooting?---Well, yeah.
Right. Now Taki wasn’t at the shooting, he wasn’t at Christian’s house that night, was he?---Correct.
When did he tell you that it was [the applicant] who was involved in the shooting?---Moments after when we seen him, couple of hours later when we seen him.
Yes, right?---He reminded, like, not reminded but mentioned it.
Now just to clear that up, I’ll clarify that. Where do you say you saw Taki that night after the shooting?---Bundoora Hotel, I think it was. Some hotel along Bundoora next to Bundoora Park.
Right. This is after you’ve made your statements to police, is it?---Correct.
…
Right. And so that statement was made at about 12.30 am or concluded, you say you went to a hotel after that do you?---Yes.
And that’s where you ran into Taki?---Correct.
Right. And you spoke to the police in the record of interview about looking at photos on Facebook. Do you remember talking about that in the record of interview?---I think so, yeah.
And so did this occur that night with Taki that he showed photos of the person he said was [the applicant] on Facebook? ---I believe so, yes.
All right. He showed you a photo of a person he said was [the applicant] on Facebook, correct?---Yep.
And he told you that that person was the person who shot, killed your friend. Is that right?---That's correct. ’Cause he was getting messages prior to the shooting that apparently they were going to come to the house and everything through Wickr.
Right. So we have the sequence whereby in the first statement that you made to police on the night at Christian’s house where you tried to give them as much information as you could. You said absolutely nothing about I thought this person might be [the applicant] or it was [the applicant] or the man with the gun was [the applicant] . There was just nothing of that in the statement, was there?---Correct.
We then have the meeting with - after you made the statement the meeting with Taki where he tells you it was [the applicant], shows you [the applicant] on Facebook, correct? ---Correct.
Yes. And then by the time of this record of interview on 27 July, as the interview goes on, explain that you know that the person who shot your friend was [the applicant] because Taki’s told you that?---Well, he didn’t tell me - he didn’t tell me, he saw - he didn’t tell me, he just showed me him and I just seen that face.
No, you’ve just told us he - you’ve already explained that in your evidence and you’ve said it - - -?---Yeah, Taki didn’t tell me; Taki showed me. He said it and I’ve seen the photo, and I’ve put two and 2 together.
He said that [the applicant] was the person who shot your friend and you’ve put two and 2 together, is that right?---He didn’t say [the applicant] was the person who shot - he doesn’t know who shot who because he wasn’t there. He just showed me the people that were involved into the altercation prior to the shooting.
Well, what did you mean by this in the record of interview when you said this at Question 266 that, ‘Taki cleared it up for me when he told me [the applicant]’?---’Cause I was confused on what happened, um, who this was. At the time I was confused, there was just a lot of things going on.

In his statement to police Pramatias made no mention of showing Tigani a photograph. In cross examination in the s 198B hearing, Pramatias said that he had met up with Tigani shortly after the shooting but denied discussing the incident beyond saying that they could not believe what had happened. The conversation took a very short time and Pramatias says he remained in his car during the conversation, which took a few minutes or ‘one minute’.

The judge’s ruling

The judge commenced his analysis by observing that the evidence of Tigani that the person he saw with the gun on 18 July 2020 was the same person who had robbed him at gun point a few weeks earlier was relevant and, subject to exclusion under s 137 of the Act, admissible. In that respect the judge noted that no issue was taken by the applicant that there had not been an identification parade as contemplated by s 114 of the Act.
In applying s 137, the judge said that the general rule was that the Court must take the evidence at its highest and assume that the evidence is accepted by the jury as credible and reliable.
The judge rejected the applicant’s submission that the jury, properly directed and acting reasonably, would be bound to reject the evidence. Further the judge did not accept that the surrounding circumstances meant that taken at its highest the probative value of the evidence was not very high at all. In doing so the judge referred to the decision of the High Court in IMM v The Queen[4] and decisions of this Court in Bayley v The Queen[5] and Peterson (a pseudonym) v The Queen.[6]
[4](2016) 257 CLR 300; [2016] HCA 14 (‘IMM’).
[5][2016] VSCA 160 (‘Bayley’).
[6][2014] VSCA 111 (‘Peterson’).
The judge said that IMM required him to take the evidence at its highest and consider the extent to which the evidence can affect the probability of the existence of the facts in issue.
The judge concluded:
In my opinion, Tigani’s evidence is probative, albeit that there are differences and discrepancies which are open to be analysed and criticised before a jury. The probative value of the evidence is not outweighed by the danger of unfair prejudice.
In essence, Tigani’s evidence is that when he saw the person in possession of the firearm on 18 July 2020, he believed that person was familiar to him. When he was later shown the Facebook photograph by Pramatias, it confirmed in his mind that the shooter was the accused man [the applicant]. [The applicant] was a man Tigani had an altercation with on 23 June 2020, during a failed drug transaction. He had an opportunity to observe him. His evidence indicates that, particularly initially, he was frightened and that affected what he initially told police. When shown the photograph of [the applicant], he recognised it as being the person in possession of the firearm, that the Crown say was used to shoot Pacione.
The issues raised about the shortcomings and unreliability of this identification are, in my view, jury issues. This is not one of those cases that fall within the category described by the High Court in IMM as being weak and unconvincing, as was the case in Bayley.[7]
[7]DPP v [Moreno (a pseudonym)] (Ruling No 1) [2023] VSC 78R, [48]–[50] (‘Reasons’).

The applicant’ submissions

By ground 1, the applicant submits that the judge erred in his assessment of the probative value of Tigani’s evidence. He says the judge failed to take into account the surrounding circumstances including the ‘exceedingly brief’ opportunity to observe the person holding the gun, and the limited opportunity to observe the person’s features which was established both by the evidence of Tigani but also the evidence of Christian and Mario Rubini. He says that the evidence of Christian and Mario Rubini brought ‘into sharp focus’ the limited window of opportunity to observe the person.
On Mario Rubini’s account:
(a)the assailant was wearing a balaclava that covered the whole of the face other than the eyes, and there was no ability to observe the person’s nose, lips, eyebrows or hair; and
(b)Tigani was only at the front door for a few seconds.
Christian Rubini said:
(a)He was not in a position to identify the man because most of the person’s face was covered by a mask and he had a black hoodie over his head.
The applicant submits that the probative value of the evidence is heavily reduced because the applicant did not tell police he had recognised the man holding the gun until he had been shown a photograph of the applicant. He says that when regard is had to the surrounding circumstances the recognition evidence was weak, unconvincing and of low probative value.
Under ground 2, the applicant contends that the judge also erred in his assessment of the degree of prejudice that would be occasioned by the admission of the evidence.
The respondent submits that the judge correctly approached his task in accordance with the High Court’s decision in IMM.[8]
[8](2016) 257 CLR 300, 312 [39] (French CJ, Kiefel, Bell and Keane JJ); [2016] HCA 14.
The respondent submits, correctly, that application is therefore governed by the principles in House v The King.[9]
[9](1936) 55 CLR 499; [1936] HCA 40 (‘House’).
The respondent submits that on the night of the shooting Tigani had a suspicion that he knew the shooter but did not tell police because he was in shock and in fear for his own safety. Tigani stated that he was able to confirm his suspicions as to the identity of the gunman once he had been shown the applicant’s photo during his meeting with Pramatias. The respondent says that any infirmity in the evidence, including inconsistencies with the other witnesses is a matter for the jury and the judge was correct to take Tigani’s evidence at its highest and assume that a jury would accept it as being credible and reliable.
The respondent says that any differences in the accounts given by witnesses is unremarkable and that in any event, to take them into account as diminishing the value of Tigani’s evidence would have necessarily (but impermissibly) required the judge to have resolved any alleged inconsistencies between their respective accounts himself.
On the question of prejudice, the respondent says that it cannot be concluded that the trial judge failed to consider the risks associated with the concept of ‘displacement effect’ and consistent with Peterson the trial judge was entitled to consider that any danger of unfair prejudice arising from the risk of any ‘displacement effect’ could be adequately ameliorated through the provision of jury directions.

Legal Principles

The starting point for the application of s 137 is that the evidence is relevant to a fact in issue. That means the evidence, if accepted, could rationally affect the assessment of the probability of the existence of a fact in issue. Consideration of that question requires an understanding of the purpose for which the evidence is to be adduced. The evidence may be directly relevant to the proof of a fact in issue or may constitute a piece of circumstantial evidence which tends to prove a fact from which the existence of a fact in issue may be inferred.[10] This latter category will fall to be considered as part of the evidence which, taken with other evidence, will enable the fact in issue to be proved.
[10]Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72 (‘Festa’).
In IMM, the High Court held that s 137 required the court to accept the evidence at its highest without regard to the credibility or reliability of the evidence.[11] That is because s 137 is concerned with the capacity of the evidence to affect the assessment of the probability of the fact in issue which can only be assessed on the premise that the jury accepts the evidence; if the evidence is rejected it could provide no basis for proving the fact in issue.
[11]IMM (2016) 257 CLR 300, 315 [52] (French CJ, Kiefel, Bell and Keane JJ); [2016] HCA 14.
The High Court reconciled the requirement in s 137 to take the evidence at its highest with the concurrent obligation to assess the relative probative value of the evidence by explaining that the probative value will largely be a function of how it is said to be relevant: is it directly relevant or merely a piece of evidence which along with other evidence may be used to prove the fact in issue? Thus the Court said:
The use of the term ‘probative value’ and the word ‘extent’ in its definition rest upon the premise that relevant evidence can rationally affect the assessment of the probability of the existence of a fact in issue to different degrees. Taken by itself, the evidence may, if accepted, support an inference to a high degree of probability that the fact in issue exists. On the other hand, it may only, as in the case of circumstantial evidence, strengthen that inference, when considered in conjunction with other evidence. The evidence, if accepted, may establish a sufficient condition for the existence of the fact in issue or only a necessary condition. The ways in which evidence, if accepted, could affect the assessment of the probability of the existence of a fact in issue are various. Within the framework imposed by the statute and, in particular, the assumption that the evidence is accepted, the determination of probative value is a matter for the judge.[12]
[12]Ibid 313–14 [45] (French CJ, Kiefel, Bell and Keane JJ).
Although the High Court held that ‘no question as to credibility of the evidence, or the witness giving it, can arise’ that reasoning admitted of at least some qualification. First, the Court noted that if the evidence is ‘so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury’ it would not pass the test of relevance.[13]
[13]Ibid 317 [58] (French CJ, Kiefel, Bell and Keane JJ).
Second, the Court explained that there may be cases where ‘the circumstances surrounding the evidence’ may show that the probative value is very low. The point was illustrated by an example given extra-judicially by JD Heydon QC[14] and addressed by the High Court in the following passage in IMM:
It must also be understood that the basis upon which a trial judge proceeds, that the jury will accept the evidence taken at its highest, does not distort a finding as to the real probative value of the evidence. The circumstances surrounding the evidence may indicate that its highest level is not very high at all. The example given by J D Heydon QC was of an identification made very briefly in foggy conditions and in bad light by a witness who did not know the person identified. As he points out, on one approach it is possible to say that taken at its highest it is as high as any other identification, and then look for particular weaknesses in the evidence (which would include reliability). On another approach, it is an identification, but a weak one because it is simply unconvincing. The former is the approach undertaken by the Victorian Court of Appeal; the latter by the New South Wales Court of Criminal Appeal. The point presently to be made is that it is the latter approach which the statute requires. This is the assessment undertaken by the trial judge of the probative value of the evidence.[15]
[14]John Dyson Heydon QC, ‘Is the Weight of Evidence Material to Its Admissibility?’ (2014) 26 Current Issues in Criminal Justice 219, 234.
[15]IMM (2016) 257 CLR 300, 315 [50] (French CJ, Kiefel, Bell and Keane JJ); [2016] HCA 14.
It may not be easy to discern the demarcation between matters of reliability (which must be ignored) and the identification of circumstances surrounding the evidence that render it ‘simply unconvincing’. That difficulty is particularly acute in the context of identification evidence. As Gleeson CJ observed in Festa, for ‘any number of reasons’ evidence of observations may be made in circumstances that affect its reliability.[16] Some of them may be a function of the particular occasion on which the observation was made (illumination, distance, weather); the nature of the thing observed (whether there was a previous association or whether the person was disguised or partially concealed); the manner in which the investigation is conducted; or the circumstances in which a representation of the earlier observation occurs (through the use of a photograph, suggestion, or whether it occurs in a police or court setting). Each of these matters may conventionally be described as going to the reliability of the evidence. Does it follow from IMM that each aspect must be ignored in the assessment of probative value?
[16]Festa (2001) 208 CLR 593, 599 [15]; [2001] HCA 72.
In our view, in considering the probative value of evidence, at least insofar as identification evidence is concerned, it is legitimate, and necessary, to take into account the quality of the evidence, and that to do so does not breach the injunction in IMM that reliability and credibility must be put to one side.
Although it is important not to treat the ‘foggy night’ example as if it were a rule against which other examples must be tested and the organising principle that differentiates it from other matters affecting the reliability of the evidence is perhaps not easy to articulate, some observations may elucidate the nature of the qualification. First, the foggy night example is concerned with limitations on the observation, rather than on a later representation of what was observed. Second, the limitations form an integral part of understanding what the evidence, taken at its highest, is capable of conveying. Third, the limitations are an inherent feature or aspect of the observation that do not depend on the reliability of the person as a witness.
In R v Turnbull,[17] the Court of Appeal of England and Wales considered the content of directions that should be given to juries where identification evidence is adduced by the prosecution. An important aspect of that decision was the discussion about the distinction between identification evidence and recognition evidence. Addressing these matters the Court of Appeal said:
Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence.
Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused’s case, the danger of a mistaken identification is lessened; but the poorer the quality, the greater the danger.
In our judgment when the quality is good, as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbour, a close friend, a workmate and the like, the jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it: provided always, however, that an adequate warning has been given about the special need for caution. Were the courts to adjudge otherwise, affronts to justice would frequently occur. A few examples, taken over the whole spectrum of criminal activity, will illustrate what the effects upon the maintenance of law and order would be if any law were enacted that no person could be convicted on evidence of visual identification alone.[18]
[17][1977] QB 224; [1976] 3 All ER 549.
[18]Ibid 228–9 (Lord Widgery CJ, Roskill and Lawton LJJ, Cusack and May JJ).
The reference to the quality of the evidence is instructive because it underpins an important distinction for the application of s 137.
In R v Dickman,[19] the respondent had been convicted at trial of a serious assault by at least two assailants that occurred in the club room of the Hells Angels motorcycle gang. One of the assailants Ali Chaouk was identified, charged and underwent trial. The prosecution case against the respondent, as the second assailant, depended on identification by the victim.
[19](2017) 261 CLR 601; [2017] HCA 24 (‘Dickman’).
The victim did not have any prior association with anyone involved in the assault including the respondent. On the night of the assault, and in order to gain entry to a nightclub, the victim had falsely told them that he was a member of the Hells Angels in Germany. When the truth came out that evening he was seriously beaten with a baseball bat. The incident had started in a nightclub where the victim first met the two accused one of whom was described as ‘the old man’ and the assault took place later that night when the offenders had taken the victim to the clubhouse. It was the prosecution case that the respondent was ‘the old man’.
The victim told police that the ‘old man’ was aged in his 50s or 60s, was 170 to 180 cm in height, white with tanned skin, he had a long beard, his hair was worn in a long ponytail, and he was wearing a green, grey and white ‘army’ style of jacket. During the investigation the victim was shown CCTV footage of the nightclub and had participated in the compilation of a ‘FACEview’ image to replicate an image of the offender. From the CCTV footage the victim identified a man called Cooper as the ‘old man’. Cooper had an alibi and was excluded from further consideration. In addition, he identified a number of other persons on the CCTV footage whom he said had been present or involved. He was also mistaken about these individuals.
The victim returned to Germany. Sometime later, when he returned to Australia for the Chaouk trial, the victim was shown a photo board with 11 photographs. He was told by police that they suspected one of the people whose image appeared on the board. The victim agreed in cross-examination that he had selected the photograph of the respondent because his photograph bore the closest resemblance to his recollection of the ‘old man’.
The respondent was convicted. He successfully appealed to this Court on the ground that the photo board identification should have been excluded under s 137 of the Act.
In this Court,[20] the majority[21] held that the probative value of the identification evidence was so low as to be outweighed by the risk of unfair prejudice. That conclusion was based on five factors: first, the witness’s reliability was ‘significantly compromised’ in that he had wrongly identified Cooper as the ‘old man’, and wrongly identified other persons as being involved; second, there was a delay of almost two years between the assault and the photo board identification; third, the victim’s memory may have been contaminated by his earlier identification of Cooper and the possible ‘displacement effect’ of viewing the CCTV footage; fourth, he had been told that his earlier identification was mistaken and he had been given to understand that a photo of his assailant would be included in the photo board; and fifth, he would have been striving to find the photograph that best resembled his memory of the attacker.
[20][2015] VSCA 311.
[21]Priest JA and Croucher AJA.

Whelan JA dissented. However his Honour agreed in the assessment of the probative value of the evidence as low.
An appeal by the Director of Public Prosecutions succeeded in the High Court and the conviction was reinstated. In the course of its reasons the High Court noted that there was no dispute that the probative value of the evidence was rightly assessed by the trial judge was low. Importantly the High Court went on:
This was an estimate that did not depend upon his Honour’s assessment of [the victim’s] truthfulness or reliability as a witness. Assuming that the jury would accept the August 2011 identification at its highest, it was identification with limited capacity to rationally affect the assessment of the probability that the respondent was the ‘old man’. This is to recognise not only the limitations of photographic identification, but also that the August 2011 identification was evidence of [the victim’s] opinion that of the 11 men whose photographs were included in the array, the respondent's photograph bore the closest resemblance to his recollection of the appearance of the man who had assaulted him two years earlier.[22]
[22](2017) 261 CLR 601, 614 [43] (the Court); [2017] HCA 24.
As we understand that passage, the limitations taken into account by the High Court to assess probative value included the risk of suggestion or displacement,[23] with the effect that the evidence went little higher than similarity rather than a positive identification. Importantly, in Dickman, unlike IMM, the quality of the evidence was not a function of factors that affected the initial observation (such as the foggy night) but included factors that attended the later process of identification.
[23]Alexander v The Queen (1981) 145 CLR 395, 409 (Stephen J); [1981] HCA 17 (‘Alexander’).
A similar approach was taken by this Court in Bayley. In Bayley, this Court held that evidence of identification in a rape trial was ‘wholly unconvincing’ and ought to have been excluded under s 137 of the Act. The accused in that case was infamous and by the time of the particular trial had been convicted of a particularly shocking murder. After he pleaded guilty and was sentenced for the murder, he faced a number of charges in respect of separate incidents involving the victims of rape that had occurred many years earlier.
The victim in one of those incidents was a sex worker, who alleged that she had been raped by a client who drove a red Mini sedan. At the time of the attack she did not report it to police but she made a note of the event which described the car driven by the man, that he had ‘short, blonde spikey hair’ and ‘ranga arms’. She said that he was ‘evil eyed during the attack’. 12 years later, after Bayley was charged with the later, infamous, murder, the victim saw an image of the man accused of that murder and told police that ‘all of a sudden I’ve seen Adrian Bayley’s face and I knew, a hundred percent, that’s my guy’. By that time the victim knew that Bayley had been arrested for rape and murder.
Later, when shown a photo board by police, the victim picked a photo of Bayley saying that the person ‘definitely looks like No. 4’.
In allowing the appeal from the rape conviction, which was based in large part on that identification evidence, this Court referred to a number of problems with that evidence including that:
(a)the identification was made from a single image on Facebook;
(b)the photo was viewed 12 years after the attack;
(c)the victim knew that the person had been charged with the rape and murder; and
(d)the photo board identification was no more than evidence of similarity rather than identification.
This Court referred to a number of authorities that showed the law had long ‘set its face’ against identification based on a single photograph in a number of cases dealing with exclusionary common law rules.[24]
[24]Bayley [2016] VSCA 160, [62] (Warren CJ, Weinberg and Priest JJA).
This Court concluded that having regard to the infirmities to which it referred, the probative value of the identification evidence was very low, and there was a high degree of prejudice that could not be ameliorated by direction. Accordingly the Court held that the evidence ought to have been excluded. This Court went on to conclude that for similar reasons the verdict was unsafe and that the jury must have had a reasonable doubt as to the applicant’s guilt. The victim’s identification evidence was so weak that no other conclusion was reasonably open.
Problems with the potential for a ‘displacement effect’ connected with photograph identification have long been recognised. In Alexander, Stephen J described the ‘displacement effect’, to which we have made reference, in the following terms:
Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent face-to-face identification, in court or in an identification parade, may, on the identifying witness’s part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting.[25]
[25]Alexander (1981) 145 CLR 395, 409; [1981] HCA 17.
The fact that there is a risk that displacement is involved in an identification does not necessarily mean that the probative value of the evidence will be reduced or that the evidence should be excluded.
In Peterson, the victim of a stabbing had made a statement that did not identify the accused. Later, after his suspicions were aroused by something he was told, he searched Facebook and found an image which he said was of the person who had stabbed him. This Court noted that the evidence was probative.[26] This Court concluded that the frailties in the evidence and the criticisms of it, which were to the effect that the identification involved elements of ‘suggestion and suggestibility’, were capable of being evaluated by the jury with the benefit of proper judicial direction.[27] The witness had ‘made an immediate and confident identification’ of the accused when he viewed the profile photograph on Facebook.[28]
[26]Peterson [2014] VSCA 111, [53] (Priest and Beach JJA).
[27]Ibid [55] (Priest and Beach JJA).
[28]Ibid.
A comparison between this Court’s judgments in DPP v Hague[29] and Dempsey (a pseudonym) v The Queen[30] demonstrates the dividing line between factors that may legitimately be taken into account as part of the surrounding circumstances of the evidence and factors that undermine the credibility or reliability of the evidence. Hague was a case where the witness was standing close to the offender at the time of the incident and, a short time later, identified him in an identification parade, albeit that out of fear he did not tell police that he recognised the offender. The attack on the evidence took the form of an argument based on ‘inherent contradictions’ and ‘internal inconsistencies’ between various accounts given by the witness. This Court held that these matters were irrelevant to the assessment of probative value under s 137.[31]
[29][2018] VSCA 39 (‘Hague’).
[30][2019] VSCA 224 (‘Dempsey’).
[31]Hague [2018] VSCA 39, [28] (Maxwell P, Priest and Beach JJA).
By contrast, in Dempsey, this Court held that in evaluating the probative value of that evidence, it was necessary to take into account the circumstances in which the witness observed the person who perpetrated the offence, and the precise nature of the identification undertaken by the witness when shown a photo board.[32] In relation to the second matter, the Court noted the inherent limitations which are common to most photographic identifications and which are ordinarily the subject of an appropriate direction given to the jury. More specifically, the quality of the photo board identification was reduced because the witness expressed some qualifications to his identification of the photograph of the applicant which narrowed the possible ‘candidates’ to those depicted in four photographs, which (according to the witness) did not look like each other. He expressed some uncertainty in selecting the photograph of the applicant, stating that ‘I’m not sure’ and ‘Not one hundred per cent’, but said that the photograph of the applicant ‘Is more where I’m going with it’. This Court concluded that the judge’s assessment of this evidence as having high probative value could not stand and substituted a finding that it was of ‘moderate’ value.[33]
[32]Dempsey [2019] VSCA 224, [128] (Beach, Kaye and Ashley JJA).
[33]Ibid [130]–[131] (Beach, Kaye and Ashley JJA).
As both IMM and Dickman make plain, s 137 does not require a court to treat as equally probative identification evidence based on an unhurried observation made in clear conditions at close quarters and a fleeting observation of a partially masked person in dim light. The latter may be relevant and acceptance of the evidence could rationally prove the existence of a fact in issue but not powerfully so. The latter may be ‘wholly unconvincing’ not because its reliability is liable to be attacked or undermined but because it is inherently qualified. Even though the ultimate import of both examples is that the witness identifies the person involved, the court cannot ignore the differing circumstances that do not turn on the credibility or reliability of the witness but which plainly affect the probative value of the evidence taken at its highest. Peterson does not suggest to the contrary.
Of course, to the extent that the matters said to go to the quality of the evidence turn on disputed questions of fact those questions must be determined by the trier of fact, and, at the stage of admissibility, it is necessary to take the evidence at its highest. The Court is not entitled to reduce the probative value of the evidence because there exists a viable competing inference that would undermine the evidence. In Bauer,[34] the High Court rejected a submission that the probative value of opinion evidence was low because of the possibility that the evidence was based on contamination, concoction or collusion. The Court said: [35]
In this context, reference to competing inferences is unhelpful, and likely to lead to error. Relevantly, the only sense in which competing inferences are of significance in the assessment of the probative value of evidence is in the determination of whether the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. As was established in IMM, that is a determination to be undertaken taking the evidence at its highest. Accordingly, unless the risk of contamination, concoction or collusion is so great that it would not be open to the jury rationally to accept the evidence, the determination of probative value excludes consideration of credibility and reliability. Subject to that exception, the risk of contamination, concoction or collusion goes only to the credibility and reliability of evidence and, therefore, is an assessment which must be left to the jury.
[34]R v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40.
[35]Ibid 91–2 [69] (the Court) (citations omitted).

Application of the principles

Probative value

The applicant submits that there are a number of circumstances relating to the evidence that render it of low probative value:
(a)the limited opportunity Tigani had to observe the gunman;
(b)the fact that the gunman was wearing a mask;
(c)the evidence of other witnesses to the effect that apart from the eyes, the entire face was covered by a ‘balaclava’ or mask; and
(d)the interaction between Tigani and Pramatias during which Tigani was shown a Facebook photograph of the applicant.
In order to assess the probative value of the evidence it is necessary to identify the purport of the evidence of Tigani ‘at its highest’. It is clear that the evidence on which the prosecution seeks to rely emerged over time, and, in many respects the witness gave earlier inconsistent versions. Ordinarily, the existence of prior inconsistent statements may affect the credit or reliability of the evidence and must be put to one side in assessing the probative value of the evidence for the purposes of s 137.[36] That is because the inconsistent evidence does no more than provide a reason for discounting or rejecting the evidence of the witness but the premise of s 137 is that the witness’s evidence is accepted. What is made plain by IMM is that the judge is not to identify and assess the forensic weakness in the evidence in order to land on some assessment of what the jury might ultimately make of it.
[36]Hague [2018] VSCA 39, [28] (Maxwell P, Priest and Beach JJA).
Equally, and this addresses the third of the applicant’s points, the fact that other witnesses gave evidence that they were unable to see the face or that it was obscured by a balaclava does no more than provide competing evidence as to the circumstances of the observation given by the witness. In assessing probative value, the court must accept the account given by the witness, assume that it will be accepted and not discount it by reference to other pieces of inconsistent evidence. Provided that the evidence of the witness is capable of acceptance and rationally bears on the fact in issue, in the sense that it is not inherently incredible, fanciful or preposterous, it must be accepted for the purpose of the analysis.
On the other hand, in a given case it may not be appropriate to take one line in the evidence and assess it free from its surrounding context in order to assess what it might prove when taken ‘at its highest’. That is especially so where the evidence contains an unstated premise or expresses a conclusion and is not merely an account of an observation; as will often be the case where a witness says that he or she recognised a person at the crime scene. There is a difference between taking evidence at its highest, and taking a portion of evidence out of context and giving it a meaning that it cannot reasonably bear when regard is had to any inherent or internal qualifications on the evidence.
In our opinion, the quality of Tigani’s recognition evidence is necessarily poor and its probative value is low because:
(a)on his own account he had no prior association with or knowledge of the applicant apart from the incident of 23 June;
(b)the opportunity for observation on 18 July was, again on his own account, limited (albeit he says sufficient);
(c)the evidence (at its highest) about his perception on the night was that he suspected that the person he saw was the same person who had attempted to rob him; and
(d)he was later shown a photograph in a context where there was plainly the risk of displacement and suggestion, and which caused him to move from suspicion to apparent certainty.
This is not a case where the witness says that based on his observations on the two occasions he knew that the same person was involved and that being shown the photograph merely enabled him to put a name to the face. That is not a fair reading of his evidence taken at its highest.
Unlike in Peterson, where there was an immediate and confident identification when the witness had observed the photograph, here, on the second or comparator occasion, 18 July 2020, when he saw the person his state of mind went no higher than a suspicion. His evidence is that he had a good look at the offender at the Roxburgh Park incident: the two were close to each other, it was in good light and there was no disguise or other impediment to observation. He said that on 18 July 2020 having seen the gunman (a view on his account limited to his eyes, nose and hair) he said he ‘suspected’ that they were the same person. He was shown a photograph of the applicant in a context that plainly suggested that the person depicted was involved in the first incident. The fact that he believed that the person depicted was involved in the first incident led him to identify the person as the shooter in the second incident. Further there was, objectively, a good reason for the suspicion that had nothing to do with identification. On the prosecution case, only a short time before the applicant had been involved in a botched armed robbery that resulted in Tigani (or his associate) stabbing the applicant and Hammoud and keeping the firearm, Tigani told police in his interview that Pramatias had told Tigani that ‘these guys’ had ‘kept messaging him… threatening him, even said to him, “If you don’t bring the gun back we’re coming to your house.”’
In his record of interview Tigani says:
I knew he was familiar but I didn’t know who. Taki cleared it up for me when he told me to – [the applicant] and I was like, ‘[the applicant] was the guy from the second – that was him,’ that’s where I found him familiar. That was the guy, I put two-to-two together and brang it to one, that’s the killer, you know what I mean, and – yeah.
When he was shown the photograph of the applicant the image confirmed in the applicant’s mind that the applicant was the person involved in the 23 June incident. He did not connect the photograph with any visual recollection he had of the person at the front door of the Lalor premises on 18 July. Tigani then ‘put two and two together’ and arrived at his conclusion that the same person was the gunman on 18 July. That proposition is confirmed by Tigani’s evidence in re-examination where he said that he came to form the view that the applicant was the person at the front door of the house, because ‘… I remembered him from the first occasion, from that first altercation we had, ah, where we were at Roxburgh Park and um I don’t forget a face’.
The process of reasoning is further revealed by Tigani’s evidence that he did some (unspecified) ‘research’.
We acknowledge that whether the evidence that he recognised the applicant is properly seen as evidence of recognition reflecting what he observed and perceived on the night of the shooting, or whether it was a conclusion based on a reconstruction of events or a deduction from what he knew and was told, would ultimately be for the jury to resolve. The judge was correct to say that they are questions for the jury. However, that does not mean that the evidence is of high probative value.
The obligation in s 137 that requires a court to ignore questions of reliability and credibility of a witness does not prevent the court from taking into account these inherent infirmities that affect the quality of the evidence. For these reasons, in our view the probative value of the recognition evidence taken at its highest was low.
It follows that our assessment differs from that of the judge. Of itself that is insufficient to set aside the ruling. In order to succeed it is necessary for the applicant to establish a House type error. In our view, error is established because the judge considered that IMM prevented him from taking into account the limited opportunity to observe the applicant, the fact that on the night his state of mind went no higher than suspicion and that his opinion only firmed once he identified the applicant as a person involved in the first incident.

Prejudice

Under s 137, the question for the judge is whether the probative value of the evidence sought to be led ‘is outweighed by the danger of unfair prejudice to the accused’. The judge’s conclusion on prejudice was shortly expressed. This Court has had the benefit of a more detailed argument on that question.
The relevant prejudice with which s 137 is concerned is the illegitimate use of the evidence including for example giving it a weight that is disproportionate to its true value. The fact that the evidence may have flaws and the witness has obvious issues with credibility or reliability is not itself a prejudice. Nor is the fact that the evidence is strongly probative of guilt a relevant prejudice. Potency and prejudice should not be conflated. Where the flaws in the evidence will be obvious to the jury or can clearly be identified by the judge then they are unlikely to give rise to any significant prejudice and such prejudice as may exist will be capable of being addressed by direction.[37] A direction would need to be given on the identification evidence under s 36 of the Jury Directions Act 2015 and the request for such a direction would need to ‘specify the significant matters that may make the evidence unreliable’.
[37]Dickman (2017) 261 CLR 601, 619 [57] (the Court); [2017] HCA 24; Peterson [2014] VSCA 111, [55] (Priest and Beach JJA); Hague [2018] VSCA 39.

The respondent submits that any prejudice can be addressed by appropriate directions. The dangers that may lurk in identification evidence, including or perhaps especially in evidence that is expressed in unequivocal or strident terms, is well known. One generally understood risk is that a jury may give the evidence greater weight than it properly bears and unless adequately instructed may not bring to mind the potential dangers.
Were the risks in this case confined to those that commonly feature in identification or recognition cases, then clear directions would likely provide a suitable and sufficient antidote.
There is in this case an additional and significant prejudice. As already revealed, a very significant part of the account given by Tigani is that shortly after the shooting he was shown a photograph of the applicant by Pramatias. The evidence surrounding that episode is critical to an understanding of Tigani’s evidence but for the reasons that follow not fairly open to be explored and challenged by the applicant.
As already stated, Tigani says he was shown a Facebook photograph of the applicant. He gave inconsistent accounts of how that occurred. Initially, he accepted that Pramatias told him that the applicant was involved in the shooting. However later in his s 198B evidence he said that ‘he didn’t tell me, he just showed me the face’.
As the evidence stands, the photograph shown to Tigani has not been produced and the circumstances in which it was selected and what was told to Tigani at the time is entirely unclear. Tigani has given two different versions about what Pramatias said. Pramatias does not say that he showed any photograph to Tigani and denies any conversation about the incident. Further, although the two offenders involved in the Roxburgh Park incident received stab wounds both Tigani and Pramatias deny any knowledge of the stabbing or even the presence of a knife. On any view, Tigani and Pramatias were involved in acquiring cannabis. Pramatias’ evidence is vague and evasive.
In our view, the poor state of the evidence as to what image Tigani was shown, how it was selected and what he was told is a critical gap in the evidence. The prosecution seeks to prove recognition or identification evidence but are not in a position to adduce critical evidence about the circumstances in which the recognition occurred. The applicant is significantly hampered in his ability to expose the sequence of events. It is true that the poor state of the evidence may leave the jury unpersuaded about the identification evidence. However, there is a real risk that the jury will fasten on the conclusion (that Tigani recognised the shooter) without proper regard to the infirmity of the evidence and the inability of the applicant to establish a firm factual footing to contend that the evidence is affected by displacement or suggestion.
Generally, the risk of displacement goes to the probative value of the evidence rather than prejudice, however there will be prejudice if by reason of the facts an accused person is restricted in his or her ability to point to a factual foundation for the submission. Often the facts will be revealed by questions to the investigators who selected and provided images to the witness to view. Here the process by which Tigani came to view the image of the applicant is heavily compromised. Further, there is a logical connection between the two incidents. It appears from the evidence that Tigani retained the firearm that was used in the Roxburgh Park incident. Further the jury will know that the applicant and Hammoud were stabbed in the incident thus giving rise to a motive for a return attack. There is a real risk that the jury will elide the logical connection between the two incidents and the identification evidence to conclude that the shooter must have been the applicant. And the applicant will remain hampered in his ability to adduce evidence to undermine the identification evidence. The process by which Tigani came to view the Facebook page was accompanied by none of the safeguards that protect against suggestion and influence.
In our opinion the prejudice to the applicant is substantial. We do not consider that the risks of suggestion and displacement, which will not be capable of being fully exposed in the evidence, can be adequately ameliorated by judicial direction. The inability to effectively and comprehensively expose the dangers lurking in the evidence generates a special prejudice which cannot adequately be guarded against by judicial warning or direction. In those circumstances, the risk of unfair prejudice clearly outweighs the probative value of the evidence, which, as we have indicated, is low.
This aspect of prejudice was not directly relied on before the judge and thus the judge did not address this prejudice in his reasons. The argument was developed to a much greater degree in this Court.
Section 137 requires the court to bring together its assessment of the probative value of the evidence and the prejudice that may be occasioned by admitting the evidence. When that is done we are persuaded that the evidence was wrongly admitted. The probative value of the evidence sought to be led is outweighed by the danger of unfair prejudice to the applicant.

Conclusion

We would grant leave to appeal and allow the appeal.
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[2023] VSCA 98

1 May 2023